MAHALINGA NADAR Vs. RAMANATHA PILLAI

JUDGEMENT

(1.) These two second appeals arise out of proceedings in execution of the decree in O.S. No. 151 of 1100 on the file of the Nagercoil District Munsiffs Court. The decree under execution was one passed by the Travancore High Court in S.A No. 612 of 1111. Second Appeal 527 is by the 3rd defendant and Second Appeal 528 by the 1st defendant. The decree in Second Appeal 612 gave relief in favour of the plaintiff only as against these two defendants and their objection to the executability of the decree has been found against by the two courts below. They have hence preferred these Second Appeals.

(2.) The objection to the execution is founded on the following facts:- Second Appeal No. 612 of 1111 was heard by a Bench consisting of Sankarasubba Iyer and Lukkose, JJ. They differed in their conclusion as to the disposal of the Second Appeal. Sankarasubba Iyer, J. was for confirming the decision of the lower appellate court and dismissing the plaintiffs suit while Lukkose, J. was for reversing the lower appellate court and restoring the Munsiffs decree granting the plaintiff relief as against defendants 2 and 3. On account of this difference of opinion the case went before another Judge under S. 9 of the Travancore High Court Act. That Judge was the then Chief Justice, Mr. Joseph Thaliath. The learned Chief Justice agreed with the decision of Mr. Justice Lukkose. In accordance with the majority opinion a decree has also been drawn up. But when the decree had to be signed both Joseph Thaliath Chief Justice and Lukkose J. had ceased to be Judges of the High Court. The decree is seen signed on their behalf by Krishnaswamy Iyer Chief Justice. The decree bears the date 20.5.1118. That is the date when Joseph Thaliath Chief Justice pronounced his decision. Lukkose J. retired on 27.4.1117 and the point of the objection was that after the third Judge who heard the case under S. 9 gave his decision the case ought to have gone back to a Bench for final disposal. We are not inclined to agree that S. 9 warrants this position. Section reads thus:- In any case, Civil or Criminal, if the two Judges forming a Division Bench agree as to the decree, order or sentence to be passed, their decision shall be final. But if they disagree, they shall deliver separate opinions, and thereupon the Chief Justice shall refer, for the opinion of another Judge, the matter or matters on which such disagreement exists, and the decree, order or sentence shall follow the opinion of the majority of the Judges hearing the case. There are no words in the section to indicate that the case should again go before the referring Bench. All that the section contemplates is that the decree shall follow the opinion of the majority of the Judges hearing the case. The decree drawn up purports to be one passed by Joseph Thaliath, Chief Justice and Lukkose, J. In other words it conforms to the requirements of the section. The decision in Nasib Singh v. Emperor ( AIR 1948 Lah. 84 ) relied on by the appellants learned Advocate itself shows that similar provisions in force elsewhere have been understood differently by different High Courts. In some jurisdictions after the Judge to whom the case is referred gives his decision the case is sent back to the Bench which referred the case to him and where it is not possible to constitute the same Bench a different Bench is constituted. In other jurisdictions the practice that was followed here viz., to draw up a decree in conformity with the majority opinion without the case going back to a Bench is followed. That practice appears to us to be in full consonance with the plain language of S. 9. Moreover that has been the practice throughout in the Travancore High Court and the same practice obtained in the Cochin High Court as well where a provision similar to S. 9 was in force. Vide S. 48 to Government of Cochin Act, 1113.

(3.) It was contended for the appellant that however long the practice has been followed we should not uphold it unless it is warranted by law. We have said that in our opinion the practice is not unwarranted. Though the exact point raised here does not seem to have been raised before the discussion in Devasya v. Mathen (26 TLJ 1361) it supports overview point fully. In answer to the argument that a single Judge cannot pass a decree we need only observe that the decree is not of a single Judge but of the majority of the Judges who heard the case. Both in substance and in form the requirements of the Section have therefore been satisfied in this case.